Parental Access Denial: Legal Rights and Remedies
Breaking up, as they say, is hard to do. Where there are children in the equation, the question of a parent’s access to the child can add substantially to the hardship. All too often, the animosity associated with separation leads one parent to deny access to a child, frustrating the other parent’s ability to maintain a relationship.
In the following, we discuss what a parent who is denied access to their child can do, and provide some context to help make sense of this situation.
The Importance of Parental Access
In a perfect world, parents would put aside their differences and cooperate to ensure both parties play an active role in their children’s lives. One way of doing this involves executing a contract regarding custody and access—namely, a “parenting agreement” or “separation agreement.” Such agreements are valid and enforceable when in writing, signed, witnessed, and when both parties have received independent legal advice.
One helpful resource that can assist families in reaching an agreement is a parenting mediator. A mediator acts as a neutral third party who works to facilitate productive communication between parties, helping resolve issues including child access rights. Mediated resolutions must be voluntarily accepted by both sides. While both legal agreements and mediation come at a price, failing to agree and escalating the conflict can often prove much more costly.
What Can You Do If You Are Denied Access to Your Child?
If parents cannot come to an agreement without assistance, or if the agreement is not being observed, they often turn to the courts and to legal professionals. This is where the experienced family law practitioners at Devry Smith Frank LLP enter the fray.
To be clear, there are circumstances where a parent is justified in denying the other parent access. This will be the case where a parent presents a protection risk to the child(ren) – for example, where an access parent is abusive, does not maintain a safe accommodation for the child(ren), or is intoxicated. However, where access is denied without justification, a parent can seek remedies from the court.
Legal Remedies for a Parent Denied Access to a Child
In applying any remedy, the courts’ paramount consideration is the “best interests of the child.” The courts will not enforce or approve a parenting agreement unless it aligns with this principle. While the best interests of the child are not precisely defined, courts must consider specific factors—including facilitating the child’s access to the other parent.[1]
Generally, the courts frown upon parents who obstruct the other parent’s access to their children. In extreme cases, courts have even transferred custody from the parent denying access to the parent who has been wrongfully denied access.
Where a parent is unable to exercise access, and the other parent is preventing access from taking place, the parent can bring a motion seeking a court order to enforce their rights. In Ontario, courts have awarded compensation to a parent denied access, covering the legal costs incurred while trying to exercise parental access rights.
Breach of Access and Contempt of Court
In exceptionally rare circumstances, a parent denied access may also seek an apprehension order. The parent, or the police, are thereby empowered by the court to apprehend the child. It must be emphasized that, given the immense psychological harm a child could be exposed to, a court is extremely unlikely to consider this to be in the best interests of the child(ren). Indeed, such orders are all but unheard of. Instead, a court asked to make this order may give the parent denying access another chance to comply, perhaps under threat of consequences for remaining in contempt of an order.
Balancing Access Rights with Legal Protections
Ultimately, Courts must balance the desire to ensure parents’ access and respect for court orders, with the desire to avoid exacerbating tension and financial trouble within families. Overlaying all other considerations, are the best interests of the child. They therefore tend to gradually raise the stakes, escalating from warnings and compensatory cost awards to the more severe contempt orders where all else fails.
When faced with a denial of access, it is important to remain composed and resist taking matters into one’s own hands. Emergency motions are available in certain circumstances. If there is a genuine risk of harm, the police are also available in the immediate term. Longer term solutions, however, will require engaging with the courts.
Navigating parental access denial can be legally complex and emotionally overwhelming. If you are facing this situation or any other family law issue, Devry Smith Frank LLP is here to help.
______________________________________________________________________________________________________________________________
[1] Among other factors, the courts consider the ability of those seeking access to the child to act as a parent. An integral part of acting as a parent is the ability to facilitate access to those for whom the child has “love, affection and emotional ties”. In the vast majority of cases, this includes both parents.